The PNG solution: as harsh as it is unprecedented

Maria O'Sullivan

Under the ''regional agreement'' signed by Australia and Papua New Guinea on Friday, all asylum seekers who travel to Australia by boat will be transferred to PNG and have their asylum claims processed there by local officials. Controversially, those asylum seekers recognised as refugees will be resettled in PNG, and not Australia.

It was clear that, given the events of recent weeks and the looming shadow of an election, the Australian government was going to take strong action against asylum seekers. However, the PNG agreement is an unexpectedly harsh policy and one which is unprecedented under international law. No other developed Western democracy utilises such a measure in a similar context.

The European Union utilises a ''burden sharing'' agreement whereby asylum seekers are expected to lodge an asylum claim in the first EU country in which they arrive (generally Spain, Italy and Greece). Those who transit to another EU country are liable to transfer back to that first EU state of entry. However, there are exceptions for certain categories of applicants, including unaccompanied children.

This regional arrangement is also supported by harmonised laws and procedures on asylum. Further, the presence of strong regional courts (the European Court of Justice and the European Court of Human Rights) provides a oversight mechanism.

In contrast, Papua New Guinea is a developing nation. Although it is a party to the 1951 UN refugee convention, there is no regional human rights infrastructure or other mechanisms in place to ensure basic common standards for processing and protection will be met in the region.

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Some work has been done in the region to develop a ''regional co-operation framework'' under the Bali Process, but this is a non-binding initiative and still very much in its infancy. It is far from the sophisticated set of common standards that have been formulated in Europe. It is therefore more accurate to refer to the PNG deal as a bilateral agreement with a developing country, not a ''regional arrangement'' as that term is understood internationally.

Moreover, under international law, Australia would retain legal responsibility for people transferred to PNG, where human rights are widely recognised as problematic. Australia's own Department of Foreign Affairs' travel advisory notes that ''ethnic disputes continue to flare up around the country'' and that disputes ''can quickly escalate into violent clashes'' and ''promote a general atmosphere of lawlessness''. Many countries, including the United States, have also raised concerns over violence and discrimination against women in PNG.

Of major concern is that Papua New Guinea is in fact a producer of refugee applicants. It is therefore puzzling that Australia would seek to transfer asylum seekers there for processing and protection. The Australian Refugee Review Tribunal has granted refugee status to people fleeing persecution from PNG in recent years, many of whom are women.

Domestic violence appears to be a serious problem in the country. Senator Bob Carr recognised these problems during a visit to PNG in December 2012, noting that ''research shows two in three PNG women have suffered from domestic violence and up to half are at risk of sexual assault''. Although a suitable facility is yet to be built for families on Manus Island, the Australian government has made it clear women and children will not be exempted from the arrangement. Given the information about PNG, this is of great concern.

How these issues will be translated into a (likely) legal challenge before the courts is yet to be seen.

The provision in the Migration Act which was so central to the High Court decision on the Malaysian solution was repealed last year. In its place is a much broader section which simply refers to the minister's view of the ''national interest''. This will make it difficult, but not impossible, to successfully challenge the PNG agreement. Much will depend on the willingness of the High Court to consider Australia's obligations under the refugee convention, and not merely the dictates of the restrictive Migration Act provisions now in place.

What is certain is that the apparent simplicity of the agreement made between Australia and PNG will be much more complex to implement in practice. It is an unprecedented arrangement internationally, and an unwelcome addition to our already restrictive approach to people trying to seek our protection and asylum.

Maria O'Sullivan is an associate of the Castan Centre for Human Rights and a lecturer in the Faculty of Law at Monash University, specialising in refugee law.